JOH v JEH - [2007] WASCA 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JOH -v- JEH [2007] WASCA 214

CORAM: STEYTLER P
McLURE JA
PULLIN JA

HEARD: 4 OCTOBER 2007

DELIVERED : 4 OCTOBER 2007

PUBLISHED : 15 OCTOBER 2007

FILE NO/S: CACV 122 of 2007

BETWEEN: JOH
Appellant
AND
JEH
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MARTIN J
Citation  :JOH -v- JEH [2007] FCWA 101
File No  :PT 6560 of 2006

Catchwords:

Family law - Children - Parenting orders - Residence orders - Relocation - Adequacy of trial judge's reasons for allowing mother to relocate with child to United States - Whether trial judge failed to consider ordering child spend equal time with both parents as required by Family Court Act 1997 (WA) s 89AA

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Dr A F Dickey QC
Respondent: Mr S R Moncrieff

Solicitors:

Appellant: Crossing Family Lawyers
Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

A v A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035
AK v The State of Western Australia [2006] WASCA 245
AMS v AIF [1999] HCA 26; (1999) CLR 160
Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212
In Marriage of Bennett (1990) 102 FLR 370
Madden v Madden [2006] FamCA 1391; (2006) FLC 93-294
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U [2002] HCA 36; (2002) 211 CLR 238

JUDGMENT OF THE COURT: By this appeal the appellant challenges parenting orders made by Martin J in the Family Court of Western Australia. At the conclusion of argument we dismissed the appeal. These are our reasons.
The parties lived together between March 2000 and January 2005. They have one child, born on 21 April 2002. The appellant, the child's father, is a legal practitioner. The respondent, the child's mother, is a school teacher. Each of the parents has formed another relationship. The father has been in a relationship with a woman to whom I shall refer as J' since December 2005. The respondent has been in a relationship with a man to whom I shall refer as 'R' since shortly thereafter.
On 29 November 2006 the appellant lodged an application for parenting orders to the effect that the child live with the parties in an equal shared parenting arrangement and that they should have equal shared parental responsibility for the child.
On 3 January 2007 the respondent (who had married R on 29 November 2006) lodged her response. She sought an order that she have parental responsibility, that the child reside with her and that she have liberty to relocate his residence to California in the United States of America where R lives. R is a lawyer, practising in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JOH v JEH

Details

AGLC: JOH v JEH [2007] WASCA 214
Case: [2007] WASCA 214
Decision Date: 4 OCTOBER 2007

CaseChat Overview and Summary

The appeal concerns parenting orders made by Martin J in the Family Court of Western Australia, involving a dispute between the child's parents over the child's residence and relocation to the United States. The appellant, the child's father, challenges the orders that allow the mother to relocate with the child to California. The central issue is whether the trial judge adequately considered the requirement for the child to spend equal time with both parents as mandated by section 89AA of the Family Court Act 1997 (WA). The appellant argues that the trial judge failed to consider this requirement and instead focused predominantly on the mother's role as the primary caregiver.

The court needed to determine whether the trial judge adequately addressed the statutory requirement for the child to have an equal shared parenting arrangement. The appellant contended that the trial judge did not give sufficient consideration to the statutory requirement and overlooked the need for equal shared parenting. The court examined whether the trial judge's reasons sufficiently addressed the statutory obligations and whether there was a proper consideration of the child's need to maintain a relationship with both parents.

In dismissing the appeal, the court found that the trial judge had adequately considered the statutory requirements and had provided comprehensive reasons for her decision. The trial judge acknowledged the statutory obligations but determined that the child's best interests were best served by allowing the mother to relocate to California, subject to conditions designed to maintain the child's relationship with the father. The court concluded that the trial judge had balanced the statutory requirements with the child's best interests and that her decision was supported by the evidence presented.

The appeal was dismissed, and the orders made by Martin J in the Family Court of Western Australia were upheld.

Orders

Orders of the court

Appeal dismissed (Judgment of the Court)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: By this appeal the appellant challenges parenting orders made by Martin J in the Family Court of Western Australia. At the conclusion of argument we dismissed the appeal. These are our reasons. The parties lived together between March 2000 and January 2005. They have one child, born on 21 April 2002. The appellant, the child's father, is a legal practitioner. The respondent, the child's mother, is a school teacher. Each of the parents has formed another relationship. The father has been in a relationship with a woman to whom I shall refer as J' since December 2005. The respondent has been in a relationship with a man to whom I shall refer as 'R' since shortly thereafter. On 29 November 2006 the appellant lodged an application for parenting orders to the effect that the child live with the parties in an equal shared parenting arrangement and that they should have equal shared parental responsibility for the child. On 3 January 2007 the respondent (who had married R on 29 November 2006) lodged her response. She sought an order that she have parental responsibility, that the child reside with her and that she have liberty to relocate his residence to California in the United States of America where R lives. R is a lawyer, practising in Los Angeles. The trial Judge made orders, amongst others, to the effect that the parties were to have equal shared parental responsibility for the child, that the child live with the mother and that the mother have liberty to relocate the child's residence to California on specified conditions. Those conditions were designed, in part, to ensure that there would be a continuing relationship between the appellant and the child. The appellant has appealed against the judgment of Martin J. There are two grounds of appeal. We will come to them after dealing with the judgment of the trial Judge. The trial Judge structured her judgment in the following way. First, she set out, in brief terms, the issues that she was required to consider. She then set out, in considerable detail, the background to those issues. In the course of doing so, she looked closely at relevant events during and subsequent to the period in which the parties had lived together. It is clear from what she said that she accepted a number of propositions in the course of doing so. The more relevant of these are that:(a)the respondent was the child's primary caregiver during the relationship;(b)after separation the respondent continued to be the child's primary caregiver;(c)the respondent had taken the child to the USA and Mexico for a period of five months shortly after the separation;(d)the respondent had again taken the child to the USA for a period of five months commencing in mid‑July 2006;(e)during the latter period the child attended pre‑school in California successfully;(f)the respondent, the child and R got on well together during this time; and(g)the respondent was genuinely caring about the child's relationship with his father and accepting of the fact that the appellant was important to the child.

Ratio Decidendi

Legal Principle Established

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